Mitchell v. Toledo, St. L. & W.R. Co.

• Decision Date: 26 June 1912
• Docket Number: 2,218.
• Citation: 197 F. 528
• Parties: MITCHELL v. TOLEDO, ST. L. & W.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

197 F. 528

MITCHELL v. TOLEDO, ST. L. & W.R. CO.

No. 2,218.

United States Court of Appeals, Sixth Circuit.

June 26, 1912

G. B Keppel, of Toledo, Ohio (Charles A. Thatcher, on the brief) for plaintiff in error.

C. A Schmettan, of Toledo, Ohio (Clarence Brown, on the brief) for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

The administrator brought suit in the court below 'under the general laws of the state of Ohio and of the United States' for the benefit of the widow and child of the deceased, Henry Cary, to recover damages on account of fatal injuries alleged to have been received by Cary on July 16, 1906, without fault on his part, but through negligence of the railroad company. Judgment upon a directed verdict was rendered for the railroad, and the case is prosecuted here on error. While in the employ of the company in its railroad yards at Delphos, Ohio, Cary undertook to assist one of the company's car inspectors, Foster, pursuant to direction of their foreman, to replace a door upon a car. The door was discovered by the inspector at a point about 400 feet away from the car. Foster and Cary carried the door to a point near the side of the car on which the door was to be replaced, when the accident occurred. The car to which the door belonged was one of 10 cars standing on a switch running north and south. This switch was known as No. 6, and was one of a number of substantially parallel switches connecting with and running north from the lead track, the latter running east and west. Foster and Cary carried the door between switches Nos. 5 and 6 northwardly to the end of the line of cars standing on No. 6, and across that track to the space between Nos. 6 and 7. The door weighed about 200 pounds, and, when the point last mentioned was reached, Cary said to Foster, 'Let's set it down,' and this was done. While the men were holding the door, with one of its edges on the ground, a switch engine pushing 18 cars was run from the lead track into switch 6 and against the south end of the cut of 10 standing cars before mentioned. This set the standing cars in motion, and the door was struck by the north car, which resulted in derailing its front trucks and driving the car across the space between 6 and 7 until it struck a car on 7. Cary was thrown under the derailed car and injured to such an extent that death ensued some hours later.

It is important to study the situation as it existed at the time the derailed car was set in motion. While the men were at opposite ends of the door and holding it with one edge resting on the ground, Cary was standing with his back to the south and his left hand on the door, and Foster was facing south with his right hand on the door. Foster testified that the door was then 'standing straight up and down,' and that the distance between Cary's end of the door and the car was 'in the neighborhood of three or four feet,' but whether the door then stood within the line of the overhang of the car subsequently derailed, or whether Cary or the door was struck first or just what portion of the derailed car struck the door, is not clearly shown, though there was testimony other than Foster's tending to show that the derailment was caused by the west wheels of the front truck of the derailed car passing over the door. It was conceded by counsel for the railroad 'that standing between the cars at that point you could not see the place where the engine was. ' In describing what happened when the men were so holding the door, Foster testified:

'We was (sic) standing there, holding the side of the door, and all at once the bunch of cars that was standing there was struck and in some way he (Cary) got caught, and before I could hardly realize what happened I saw him go under the car behind the first pair of trucks. * * * It was so unexpected and so quick that I couldn't catch-- the first I realized after the striking of the cars I saw him going under the cars. * * *

'Q. Were you able to tell at all that the engine was approaching and about to strike those cars? A. Not where we were standing holding the side of the door.'

The car to which the door in question belonged was next south of the derailed car. Thus, at the time of the accident, the men had reached a point within about one car's length of the car on which they were to replace the door. It is plain that they had no thought of the approach of the switch engine and cars it was pushing, or of the resulting movement of the car that was derailed. This movement was not only unexpected, but sudden. If Foster is right in his testimony that the door was being held in an upright position, it is difficult to see how it came into contact with the north car and caused its derailment, unless the suddenness of the car movement startled one or both of the men, and so caused one or both to change the position of the door. True, they might have placed and held the door within a line corresponding with the outside of the overhang of the derailed car, but in that event it is hard to understand why Cary was not struck by the end of the car instead of being thrown under it behind the front trucks. In either event, the sudden movement of the cars was calculated to surprise the men and throw them off their guard. The evidence tends to show that the standing cars were susceptible of nearly simultaneous movement, because they were equipped with automatic couplers and coupled together. One of defendant's switchmen testified that the movement caused by a stroke at one end of such a string of cars is communicated to the other end in four or five seconds, also saying, 'It is awful close.'

It was practically admitted by defendant that nothing was done by the company in this instance to prevent a movement of the cars. This admission was made in connection with an offer of testimony as to the practice of railroads to protect car repairers. Witnesses of some experience in such matters were called-- one particularly of considerable experience as yardmaster first for the defendant company, and for the Lake Shore at the time he was on the witness stand-- to show this practice generally, including that of defendant. The effort seems, in substance, to have been to prove that the practice or custom was through the foreman of car repairers, to give notice to the switching crew that repairs were about to be made or were being made on cars standing on switches, or by placing a flag at each end of lines of standing cars in advance of undertaking to repair any of them. Objections to the introduction of all such testimony were sustained and exceptions reserved, the learned trial judge holding as matter of law, in the first instance, 'that it was the duty of the company to protect these men against a movement of the cars'; and, further, 'that it does not make any great amount of difference, it seems to me, how that duty was to be performed.' Later the ruling was restated thus: 'I shall say to this jury that that was the company's duty, to prevent the cars from moving while this door was being put on.' Foster having testified on cross-examination in substance that there was room between the opposite car on switch 7 and the position of the car door at the time of the accident to place the door further west, and also to enable Cary to stand 'in the clear,' and so avoid the accident, the court believed that the men had a choice of positions, and that they 'chose their own position, a position of danger.' Counsel for the administrator thereupon sought and the court denied leave to...